Bauer v. Lynch

• Decision Date: 11 January 2016
• Docket Number: No. 14–2323.,14–2323.
• Citation: 812 F.3d 340
• Parties: Jay J. BAUER, Plaintiff–Appellee, v. Loretta E. LYNCH, Attorney General, Department of Justice, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

812 F.3d 340

Jay J. BAUER, Plaintiff–Appellee,
v.
Loretta E. LYNCH, Attorney General, Department of Justice, Defendant–Appellant.

No. 14–2323.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 15, 2015.
Decided: Jan. 11, 2016.

812 F.3d 341

ARGUED:Charles W. Scarborough, United States Department of Justice, Washington, D.C., for Appellant. Michelle Reese Andrew, Andrew Law Group LLC, Wilmette, Illinois, for Appellee. ON BRIEF:Dana J. Boente, United States Attorney, Office of the United States Attorney, Alexandria, Virginia, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Marleigh D. Dover, Civil Division, United States Department of Justice, Washington, D.C., for Appellant. Paul K. Vickrey, Niro, Haller & Niro, Chicago, Illinois; Craig C. Reilly, Alexandria, Virginia, for Appellee.

Before KING and HARRIS, Circuit Judges, and GEORGE J. HAZEL, United States District Judge for the District of Maryland, sitting by designation.

Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Harris and Judge Hazel joined.

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KING, Circuit Judge:

For more than ten years, the FBI has measured the physical fitness of its New Agent Trainees ("Trainees") by using gender-normed standards. In July 2009, plaintiff Jay J. Bauer flunked out of the FBI Academy after falling a single push-up short of the thirty required of male Trainees. Bauer then filed this Title VII civil action, alleging that the FBI had discriminated against him on the basis of sex, in that female Trainees were required to complete only fourteen push-ups. The Attorney General and Bauer filed cross-motions for summary judgment, and the district court granted Bauer's motion. See Bauer v. Holder, 25 F.Supp.3d 842 (E.D.Va.2014). The Attorney General has appealed and, as explained below, we vacate and remand.

I.

A.

The FBI trains its Special Agent recruits at the FBI Academy in Quantico, Virginia.¹ The twenty-two week program consists of four main components that assess Trainees' proficiency and suitability for FBI service, each of which must be successfully completed to graduate from the Academy: academics; firearms training; practical applications and skills; and defensive tactics and physical fitness. Various assessment tools are used to ensure that Trainees demonstrate adequate proficiency in each component of the Academy's curriculum. For example, academic training requires successful completion of a series of written examinations. Firearms training requires attendance at training sessions and the successful completion of marksmanship qualifications. Of importance here, all Trainees must pass a physical fitness test (the "PFT").

According to the FBI, Trainees must pass the PFT and thereby demonstrate their physical fitness for two primary reasons. First, a basic level of physical fitness and conditioning leads to strong and injury-free performance at the Academy. Second, physical fitness supports effective training and application of the elements taught within the defensive tactics program, which include self-defense, combat, and restraining techniques. The FBI developed the PFT to ensure that those aims would be satisfied and to identify the Trainees who possess the initiative and perseverance required of a Special Agent. The FBI requires every Special Agent recruit to pass the PFT twice: once to gain admission to the Academy, and a second time to graduate.

The FBI has not always utilized the current version of the PFT. Prior to 2004, prospective Trainees proved themselves physically fit for admission to the Academy by completing a timed 1.5–mile run. Once at the Academy, Trainees were required to pass a five-part test, comprised of pull-ups, sit-ups, push-ups, a 120–yard shuttle run, and a two-mile run. Despite the use of the 1.5–mile run as an admissions requirement, physically unfit Trainees sometimes gained admission to the Academy. As a result, some Trainees suffered injuries, and the Academy's instructors spent substantial time coaching Trainees into shape rather than focusing on the Academy's curriculum. Moreover, because the five-part test had not been formally validated as a physical fitness assessment, the FBI would not dismiss Trainees solely for failing it. Accordingly, in 2003, the FBI decided to develop the PFT, which would be

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used as a requirement for both admission to and graduation from the Academy, and could be validated as a reliable assessment tool for personnel decisions.

To design the new testing protocol, the FBI considered a list of more than 200 essential tasks of the Special Agent position and determined that nearly half of those tasks related directly to overall physical fitness. Supervisory agents in charge of physical training at the Academy offered expertise regarding the types of training events that best served as indicators of Trainees' overall levels of physical fitness. The FBI also considered standards of the exercise physiology industry. Those deliberations led to the selection of four events, to be completed in a single test in the following sequence: one minute of sit-ups; a 300–meter sprint; push-ups to exhaustion; and a 1.5–mile run. The events required Trainees to demonstrate baseline levels of fitness in core muscle strength and endurance, short-term physical power and speed, upper body strength and endurance, and aerobic capacity and endurance, respectively.

With the battery of events selected, the FBI evaluated and developed the minimum standards that Trainees would be required to satisfy in order to pass the PFT. To that end, the FBI implemented the PFT as a pilot program in each of its seven 2003 Academy classes and analyzed the results (the "Pilot Study"). The Pilot Study consisted of 322 Trainees—258 men and 64 women—who completed the PFT during their first week at the Academy. The Pilot Study results were then subjected to thorough statistical analyses and standardized so that the FBI could compare Trainees both within and across the four events.

As a part of the statistical standardization, the FBI sought to normalize testing standards between men and women in order to account for their innate physiological differences. The FBI reasoned that, due to such distinctions, equally fit men and women would perform differently in the same events. Accordingly, the FBI determined that male and female Trainees would be required to complete the four PFT events, but that different minimum standards would be established for each sex. The FBI concluded that use of such a gender-normed framework would have the complementary benefits of allowing the measurement of equivalent fitness levels between men and women while also mitigating the negative impact that would otherwise result from requiring female Trainees to satisfy the male-oriented standards. The practice also aligned with the FBI's use of gender-normed standards on the predecessor 1.5–mile run and five-part test.

After assessing the Pilot Study's results, the FBI computed the mean result and standard deviations therefrom in each event for each sex. Using that data, the FBI applied a point system to score each of the four events. For each event, Trainees could score one point for achieving the minimum standard, three points for achieving the Pilot Study's mean, and four or more points for above-average achievement, with a maximum of ten points. To successfully complete the PFT, Trainees had to score at least twelve points across all four events, with at least a single point earned in each event. That scoring system allowed Trainees who could demonstrate only a minimum, below-average level of fitness in one event to compensate by demonstrating above-average fitness in other events.

To receive the minimum passing score in each of the four events, Trainees would need to satisfy the following standards, which were fixed at one standard deviation

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below the Pilot Study's mean result for each sex:

Event Men Women

Sit-ups	38	35
300–meter sprint	52.4 seconds	64.9 seconds
Push-ups	30	14
1.5–mile run	12 minutes, 42 seconds	13 minutes, 59 seconds

The foregoing standards reflected the Pilot Study's results for the fifteenth percentile in each event, that is, eighty-five percent of Trainees were expected to earn at least one point in each event. Within the push-up event, the FBI found that 84.3% of male...